Thanks to the Delhi High Court for letting us Netflix and chill!

Highlights

Background: In a public interest litigation filed by the Justice for Rights Foundation in the Delhi High Court, a plea was made for separate guidelines to regulate content on online streaming platforms. The Ministry of Information and Broadcasting (MIB) and the Ministry of Electronics and Information Technology (MEITY) informed the Court that the Information Technology Act is a robust enough legislation. On February 8, 2019, the High Court agreed with this submission and dismissed this PIL.

Industry proposes Self-Regulation: In January 2019 at the India Digital Summit in New Delhi, the Internet and Mobile Associations of India (IAMAI) along with some prominent online video streaming companies created a code for self-regulation. As per press reports this has been presented to MEITY and Ministry of Information and Broadcasting (MIB) for endorsement. We have in the past cited concern on this measure.

Giving credit where it is due: We wrote to MEITY appreciating the position it took in affirming the sufficiency of the Information Technology Act for online video content streaming even though some provisions within it require reform. We have also called on for additional steps including seeking a correction of the order (given it cites the non-existent Section 66A) and asking a copy of it to be furnished in similar public interest litigations.

Background

Three interesting events have taken place bringing us to this particular intersection.

One: On October 11, 2018 a public interest litigation (PIL) was filed by the Justice for Rights Foundation in the Hon'ble High Court of Delhi (W.P. (C) 1164/2018) requesting the Court for guidelines on regulating certain kinds of content on the online platform. This included web based shows such as Sacred Games, Game of Thrones etc., for vulgarity, pornography, abusive language, as you can imagine, the list goes on. This is not limited to certain adult-based content but even the use of the phrase 'Holy Cow' in Charlie and the Chocolate Factory (Read the PIL here).

Two: On January 16, 2019, the Economic Times reported an agreement among certain companies and the IAMAI on a code for the self-regulation by online content providers. We explained the deterrent effect this would have on your online viewing experience (Read here for more).

Three: On February 8, 2019, a division bench of the Hon'ble Delhi High Court consisting of the Hon'ble Chief Justice Rajendra Menon and Hon'ble Justice V. Kameswar Rao delivered a verdict on the PIL filed by Justice for Rights Foundation dismissing the petition. This was possible largely due to the positive submissions by MIB and MEITY.

Appreciation with a side of caution

The Hon'ble Court affirmed that while there is no separate provision for regulating online content, the provisions of the Information Technology Act, 2000 were not only merely applicable but an adequately armed with Section 69 to block illegal content. It also contains an entire chapter of offences which can take care of illegal content. While we are concerned with some of them, this is an incremental victory. It prevents a heavy, licensing style system from emerging in the video streaming space which would threaten our viewing choices online.

A large part of this result is due to the submissions of both the MIB and MEITY which pointed that there is no need for further guidelines when sufficiently stringent provisions are already in existence. Agreeing with them, the Hon'ble Court instructed that if the petitioner continued to consider content provided on certain platforms prohibitory, it should take it up with the relevant statutory authority. That's legal for 'tough luck'. You can find the order of the Court here.

This is a positive outcome due to the submissions made by two government ministries. We have called on them to cement this with taking the following actions:

Incorrect reference to Section 66A: The Hon'ble Court order has referred to Section 66A of the Information Technology Act which was struck down as unconstitutional. Here government ministries should ideally approach the Court and request for a correction of this error.

Utilise the Order: After such an application has been made and a corrected order is available it may be used in similar PILs which are pending in different courts over India. This will prevent any inconsistency and help maintain our online freedoms.

Avoid according sanction to the self-censorship code:If the IAMAI Self-Regulation Code for online video streaming platforms was to receive validation, it would result in it being accepted as an industry-wide norm. Cut to, the pre-censorship of your favourite shows. This would defeat the very beauty that lies in the uninhibited nature of online viewing content. Your shows would just be one magnificent 'bleep' like Udta Punjab and its 94 cuts. It is for this reason we urge both MIB and MEITY to maintain its position which it took in this case.

We will be sending a letter for these follow up actions and also seeking a meeting with their offices. You can find our letter to MIB and MEITY at this link.

Our Work: We are a civil liberties advocacy organisation focusing on technology and fundamental rights. Working across the spectrum -- with expertise in free speech, digital surveillance and privacy, net neutrality and innovation -- we champion human freedom in the digital space. Our aim is to ensure that people in the world's largest democracy are able to use technology with liberty and justice guaranteed under the Constitution of India.

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